Law Commission – Contempt of Court Project: Memorandum by Sir James Munby (26 September 2022)

Published: 07/10/2022 13:57

1⁠. I have been professionally involved for over 30 years, first as a barrister and then as a judge, with the related issues of contempt of court and transparency, as it is now called, especially in relation to the family justice system. My focus here is with the family justice system in which, for present purposes, I include the Court of Protection, where analogous issues arise.

2⁠. I wish to deal with eight topics which I invite the Commission to consider as part of its Contempt of Court Project. I appreciate that some of this may fall outside the scope of, or be peripheral to, the Project, but I believe it important to consider the wider context.

Topic (1) – transparency

3⁠. Any analysis of the law of contempt as it applies in the family courts (the Family Division and the Family Court, the latter including The Financial Remedies Court) has to be considered in the context of current debates about the wider issue of transparency in the family justice system. My Views have not changed in substance since my Submission dated 14 May 2021 to the President’s Transparency Review. The submission was published as The President’s Transparency Review: Part I [2021] Fam Law 923 and The President’s Transparency Review: Part II [2021] Fam Law 1046. Part I looked at historical attempts at reform – what I characterised as ‘The failure of reform’ – the problems and the consequences; Part II set out some proposals for reform. On the history of reform see also my 2010 Hershman-Levy Memorial Lecture: Lost Opportunities: law reform and transparency in the family courts [2010] 22 CFLQ 273.

4⁠. Put shortly, my thesis was (and is) that the law is not satisfactory and requires reform; that this has seriously affected the standing of the family courts – ‘the family justice system stands today in lower public regard than at any time I can recall’ (p 932); and that ‘significant reform, not just tinkering … is an urgent and imperative necessity’ (p 1050).

5⁠. Since then the President has, of course, published, on 28 October 2021, the outcome of his Transparency Review: Confidence and Confidentiality: Transparency in the Family Courts. I welcome what he has said, in particular the views expressed in para 22:

‘It is no longer possible to rely upon the factors against more openness to prevail so that the Family Court continues to be an exception from the ordinary imperative for open justice. The extent of the jurisdiction of the Family Court, and the volume of its caseload, means that the impact of its work is now felt by many, in a way which will have been beyond the contemplation of legislators over 60 years ago in 1960. The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects.’

I note, however, the slow pace of the work being done by his Transparency Implementation Group; thus far, so far as I am aware, it has not published any of its proposals, despite the President’s call (Review, para 63), now some eleven months ago, for ‘a period of accelerated change’.

Topic (2) – s 12 of the Administration of Justice Act 1960

6⁠. Shortly before my Submission to the Transparency Review, I, together with His Honour Clifford Bellamy, Lucy Reed, Dr Julie Doughty and Louise Tickle, had submitted to the Law Commission a Proposal for the Law Commission’s 14th Programme of Law Reform:

‘That consideration be given to a review of s 12(1)(a) of the Administration of Justice Act, with a view to its repeal and, if appropriate, replacement with more focused provisions better suited to the modern world.’

The Proposal was published in [2021] Fam Law 466 and, with an introduction and under the title ‘Should section 12 of the Administration of Justice Act 1960 be repealed?’ in [2021] 80 Family Affairs 23.

7⁠. Our thesis in The Proposal was simple and uncompromising:

‘With the passage of time, and in the modern context in which it is now operating, section 12(1)(a) has become unsatisfactory, unfair, unduly complex, inaccessible and outdated. Repeal of section 12(1)(a) is long overdue. Until it is repealed the public’s perception of the Family Court as a “secret” court will persist. The consequences are multiple and serious. The Family Court and the law are brought into disrepute, the family justice system loses legitimacy and public trust, and highly vulnerable children and families are failed by the system that exists to protect them.’

8⁠. I elaborated my thinking in relation to s 12 in Part I of my Submission under the headings ‘The problem’ (pp 927–928), ‘The consequences’ (pp 928–930), ‘Holding to account’ (pp 930–931) and ‘The standing of the family justice system today’ (pp 931–933). Except as set out below, I have nothing to add. I reiterate the importance of repealing s 12(1)(a) and, by parity of reasoning, s 12(1)(b). Sections 12(1)(c)–(d) and, importantly for present purposes, s 12(1)(e) should remain in force. I draw attention to the President’s view (Review, para 38):

‘The 1960 Act was concerned to protect and support the administration of justice. Now, some sixty years after its enactment, I have concluded that s 12 has the contrary effect of undermining confidence in the administration of Family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the judiciary. I do however support calls for urgent consideration to be given by government and Parliament to a review of this provision.’

Topic (3) – s 97 of the Children Act 1989

9⁠. There is at present a curious interplay between s 12(1)(a) of the 1960 Act and s 97 of the 1989 Act, not least that while one gives rise to a civil contempt the other creates a criminal offence. The Commission may wish to consider whether in this context the appropriate remedy should, as a matter of general principle, take the form of proceedings for contempt or criminal proceedings. Whatever the answer, it would not, of course, affect the standard of proof.

10⁠. Section 97 requires amendment in two respects: First, by reversing the decision in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, so that the protection afforded by Section 97 would continue beyond the end of the case and until the child reaches the age of 18. Secondly, so as to put beyond doubt the correctness of the construction of s 97(4) expressed obiter by the Court of Appeal in Griffiths v Tickle [2021] EWCA Civ 1882, [46] and [74], namely that s 97(4) must be ‘read down’ in accordance with s 3 of the Human Rights Act 1998 so as to permit the court to dispense with the prohibition in s 97(2) wherever this is required to give effect to the Convention rights of others.

11⁠. If s 97 is amended in this way, s 12(1)(a) of the 1960 Act can simply be repealed without replacement, as I would propose. The core principle ought to be that any restriction on reporting family proceedings heard in private over and above that imposed by s 97 of the 1989 Act (as so amended) should require a specific court order appropriate to the circumstances of the particular case (see further under Topic (5) below).

Topic (4) – the Judicial Proceedings (Regulation of Reports) Act 1926

12⁠. The entire Act should be repealed.

13⁠. Section 1(1)(a) is a dead letter, is anachronistic in modern conditions and serves no useful purpose.

14⁠. There is continuing controversy as to the meaning and effect of s 1(1)(b): see Xanthopoulos v Rakshina [2022] EWFC 30, [129]–[134] and my article ‘Some Sunlight Seeps In’ [2022] FRJ 79, 84–85. However, with the recent implementation of divorce law reform and, separately, the administrative separation of the processes of divorce, etc, from financial remedies proceedings, s 1(1)(b) no longer serves any useful purpose.

Topic (5) – technical issues in relation to anonymity

15⁠. Recent judgments of Mostyn J in three cases in the Financial Remedies Court, BT v CU [2021] EWFC 87, [2022] 1 WLR 1349, [100]–[114], A v M [2021] EWFC 89, [101]–[106], and Xanthopoulos v Rakshina [2022] EWFC 30, [74]–[141], have raised serious questions about the practice of anonymising judgments in financial remedies cases. These judgments have given rise to significant controversy. In ‘Some Sunlight Seeps In’ [2022] FRJ 79, I asserted that Mostyn J was completely right in the views he had expressed, and I provided additional reasons in support of those views. Since then, Mostyn J has given judgment in another financial remedies case, Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52, with which I entirely agree, and extended his analysis to the Court of Protection: Re EM [2022] EWCOP 31, [40]–[46]. Again, I agree with the overall thrust of what he is saying (the difference between us on the ‘Webster’ point is immaterial for present purposes). See also his judgment in Aylward-Davies v Chesterman [2022] EWFC 4, [26]–[31].

16⁠. There is one aspect of this to which I draw attention: the use and misuse of the rubric.

17⁠. It has been the practice for the last twenty years or so to attach a rubric to anonymised judgments in the family courts. I set out the history in ‘Some Sunlight Seeps In’ [2022] FRJ 79, 88-89. The present form of the rubric reads as follows:

‘This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.’

18⁠. The important point for present purposes (see my analysis in ‘Some Sunlight Seeps In’ [2022] FRJ 79, 89–91, and Mostyn J passim) is that:

  1. The rubric is not an injunction; and accordingly
  2. The rubric ‘works’ – has any legal effect – only in cases where s 12 of the Administration of Justice Act 1960 applies.

The corollary of this, as Mostyn J has correctly held, is that:

  1. The rubric is ineffective – putting it plainly, is not worth the paper it is written on: (i) in financial remedy cases (except those under Schedule 1 of the Children Act 1989) and (ii) in the Court of Protection when, in accordance with current practice, an order has been made at the outset for the case to be heard in public.
  2. In such cases the court’s objective can be achieved only if the court makes a reporting restriction order following a process (i) which complies with s 12 of the Human Rights Act 1998 and (ii) in which a judge has undertaken the ‘balancing’ exercise mandated by *In re S (A Child) (Identification: Restrictions on Publication)* [2004] UKHL 47, [2005] 1 AC 593. As Mostyn J put it in *Gallagher v Gallagher (No.1) (Reporting Restrictions)* [2022] EWFC 52, [81], and I agree:
  3. ‘the standardised anonymisation of judgments is unlawful and … a reporting restriction or anonymisation order can only be made in an individual case where it has been applied for, and awarded, after a full *Re S* balancing exercise.’

  4. The present arrangements in the Court of Protection are incorrect: see *Re EM* [2022] EWCOP 31, [43].

19⁠. The important point which Mostyn J goes on to make is that this is not a problem which can be resolved by the Rules Committees. Primary legislation is required: see Xanthopoulos v Rakshina [2022] EWFC 30, [140], and Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52, [82]–[85]. As he said in the latter case:

‘to create a scheme providing for standardised anonymisation of financial remedy judgments will require primary legislation.’

I agree.

20⁠. The existing rubric should be abolished at the earliest opportunity. It is a brutum fulmen, is thoroughly misleading and is almost certainly unlawful. Assuming that s 97 of the 1989 Act is reformed as proposed above, the existing rubric should be replaced by three new rubrics. The first would be attached where s 97 applies and should say:

‘This judgment was delivered in [private OR public] in proceedings to which the provisions in section 97 of the Children Act 1989 apply. These prohibit identification of any children involved in the proceedings or of their address or school. All persons, including representatives of the media, must ensure that in any published version of the judgment section 97 of the Children Act 1989 is strictly complied with. Failure to do so will be a criminal offence.’

The second would be attached where s 97 applies but the court has made an order under s 97(4):

‘This judgment was delivered in [private OR public] in proceedings to which the provisions in section 97 of the Children Act 1989 would otherwise apply but the judge has made an order in accordance with section 97(4) which [summarise its terms]. Reference should be made to that order for its full terms and effect.’

The third would be attached (together with the first rubric if s 97 applies) where the court has made a reporting restriction order and should say:

‘This judgment was delivered in [private OR public]. The judge has made a reporting restriction order which [summarise its terms]. Reference should be made to that order for its full terms and effect. All persons, including representatives of the media, must ensure that in any published version of the judgment the terms of that order are strictly complied with. Failure to do so will be a contempt of court.’

Topic (6) – contempt in the context of wardship

21⁠. Any proposal to put the law of contempt on a statutory footing requires thought to be given to the long-established principles:

  1. that no ‘important’ or ‘major’ step in the life of a ward of court can be taken without the prior consent of the court; and
  2. that a criminal contempt of court is committed by someone who (i) without the consent of the court undertakes or facilitates some ‘important’ or ‘major’ step in the life of the ward of a kind that cannot lawfully be taken without the prior consent of the court and (ii) knows that the child in question is a ward of court.

Although the law on this topic is complex, these two principles are clearly established by the authorities: see Kelly v British Broadcasting Corpn [2001] Fam 59, Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 4 WLR 100, and In re A Ward of Court (Wardship: Interview) [2017] EWHC 1022 (Fam), [2017] Fam 369.

22⁠. What is not so clear is what in this context constitutes an ‘important’ or ‘major’ step: see, for example, Kelly and In re a Ward and the various textbooks to which reference is there made. This will require very careful analysis if a statutory formulation is to be proposed.

Topic (7) – the distinction between criminal and civil contempt

23⁠. The distinction between criminal and civil contempt was necessarily at the centre of my analysis in Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 4 WLR 100. If the law of contempt is to be put on a statutory footing, it is difficult to see why the distinction needs to be maintained. After all, each needs to be proved to the same – criminal – standard. Egeneonu v Egeneonu itself illustrates how arbitrary and devoid of substance the distinction is: see my analysis of Wellesley v The Duke of Beaufort, Long Wellesley’s Case (1831) 2 Russ & M 639 and Re Crump [1963] Crim LR 666, 777, fuller report (1963) 107 SJ 682. Suppose that Y was a ward of court, that an order (not referring to the fact that Y was a ward) had been made prohibiting X from marrying Y, and that X and Y had married. If X knew that Y was a ward the contempt was criminal; if X did not know that Y was a ward but knew of the order, the contempt was civil.1 Ought this kind of arid distinction to have any part to play in the modern law? More specifically, does one need to maintain the distinction merely to provide a springboard for the kind of argument put forward by the applicant in Egeneonu v Egeneonu – that a criminal contempt is a criminal offence and that an absconded criminal contemnor is accordingly liable to extradition?

24⁠. I think I am right in saying that, apart from the privilege of Parliament point considered in Long Wellesley’s Case (assuming it still exists), the only other distinction between the two today is that in the case of a criminal contempt the contemnor can be released under the Royal Prerogative of mercy (because only the Crown has a stake in the matter) whereas a civil contemnor cannot be so released (because that would be to interfere with the interests of the person in whose favour the underlying order had been made). None of this justifies perpetuation of the distinction.

Topic (8) – reform of the Debtors Act 1869

25⁠. Let us suppose that, at the conclusion of financial remedies proceedings under Part II of the Matrimonial Causes Act 1973, the judge makes an order against a husband in favour of a wife: (a) to transfer to her the former matrimonial home; (b) to hand over to her various specified chattels; (c) to hand over to her various specified bearer securities; and (d) to pay her £100,000. If the husband defaults in relation to (a), (b) or (c) he is liable to imprisonment for contempt of court for two years. If, however, he defaults in relation to (d), the effect of sections 4 and 5 of the Debtors Act 1869 (read in conjunction with sections 11 and 28 of and Schedule 8 to the Administration of Justice Act 1970) is that he can be imprisoned for a maximum of only 6 weeks.

26⁠. It is difficult to discern any rational explanation for this distinction which is, I suspect, nothing more than a historical artefact reflecting the facts (i) that in 1869 there was no maximum sentence for contempt, with the consequence that until the 1869 Act came into force a debtor could languish in prison indefinitely, and (ii) that the maximum sentence for contempt of two years was introduced by s 14(1) of the Contempt of Court Act 1981. Moreover, the maximum of six weeks is, as the judges of the Family Division have previously said to the Commission ‘quite inadequate’: see the Commission’s 2016 Report, Enforcement of Family Financial Orders (Law Com No 370), para 15.5. I would express the point more forcefully: it is risible.

27⁠. The irrationality of this distinction in the context of the work of the Financial Remedies Court is further illustrated by (i) the absurdity that in enforcement proceedings you can start a contempt application against a defaulter who has not complied with a disclosure order made in those proceedings but you cannot do so in respect of the failure to pay the underlying debt, and (ii) the fact that the 1869 Act does not prevent the imprisonment for up to two years of a contemnor who has failed to comply with an order to provide security, whether by way of payment into court or into an appropriate bank account, or even, in some circumstances, where the contemnor has failed to comply with an undertaking to pay a sum of money: Hussain v Vaswani [2020] EWCA Civ 1216, [46].

28⁠. I suggest two matters for consideration: First, the removal of the relevant provisions from s 5 of the 1869 Act and the insertion in s 4 of an additional exception for financial remedies orders made under either Part II of the 1973 Act or Schedule 1 to the 1989 Act. Second, an increase from 1 year to 2 years of the maximum permitted sentence as set out in the proviso to s 4.

29⁠. In making these suggestions, I am very conscious of the Commission’s decision in 2016 as set out in paragraph 15.5 of its Report. I do, however, question with great respect whether this is simply a matter of ‘policy’ – it has at least as much to do with the coherence and rationality of the law – and observe that, so far as I am aware, there has not in the intervening almost six years been the further consideration for which the Commission called.

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